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OSDL Takes on Bad Patents

Open Source Development Labs isnt sitting idle while overbroad software patents that threaten open-source developers and users are issued.

So says Diane Peters, OSDLs general counsel, in defending an OSDL project known as OSAPA (Open Source as Prior Art) that has come under criticism from Richard Stallman, founder of the Boston-based Free Software Foundation.

The goal of the OSAPA project is to reduce the number of poor-quality patents issued. It plans to do so by increasing accessibility to open-source software code and documentation that can be used as prior art during the patent examination process, said Peters in Beaverton, Ore.

But Stallman accused OSDL and the OSAPA project of pandering to large companies with huge patent portfolios, such as IBM and Hewlett-Packard, that really want only to get rid of the patents that will cause them trouble.

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"What programmers need in order to do their work safely is the abolition of software patents. That is what we should campaign for," Stallman said. "OSDLs project ... appears to offer a solution to the software patent problem which isnt really one," Stallman said.

Peters admitted that software patents today are "a mess. We know that it is a problem, and we are working hard on a practical solution ... that isnt waiting for the abolition of software patents generally," she said.

But while the industry waits for that result, there will be "stacks of software patents at issue [some of which will] be overbroad and [threaten] developers," Peters said.

"The solution we are working toward is alleviating the problem and reducing the risk between now and when, if ever, software patents are no longer an issue," she said.

An IBM spokesperson defended the Armonk, N.Y., companys dual role of collecting software patents while supporting patent reform, telling eWEEK that IBM has the credibility within the industry to assume an active role "not only because we annually earn the most patents in the U.S., but because our behavior is understood to be moderate, constructive and reasonable, with good working relationships with the open-source community, licensees, software developers and the USPTO [U.S. Patent and Trademark Office]."

"Our motivation to be active is to make software and patents once more all about innovation, not litigation. One way to reduce litigation is to improve the availability of prior art, and to therefore improve patent quality," the spokesperson said.

But Stallman charged that the projects focus on "absurd software patents" is incomplete, does not pay attention to the needs of software developers and users in general, and could backfire. "The GNU Project does not participate in the project, and [developers and users] should think twice about it, too," Stallman said.

Peters disagreed, saying the project focuses not on "absurd patents" but on ensuring that the patents issued are as narrow as possible. "That is of critical importance," Peters said.

For developers such as Ross Turk, an engineering manager in the open-source technology group at SourceForge.net, the effort is about more than just patents. SourceForge.net is an open-source software development Web site that provides free hosting to open projects.

"The USPTO wants to find open-source software more easily, and, in that way, they share a goal with the majority of our users," said Turk in Fremont, Calif. "I am involved because just about anything we do to provide public exposure to open-source projects is good for free software as a whole."

SourceForge.net also is interested in learning about patent examination to educate its users on how to annotate and publish their code so as to effectively protect it against subsequent patent claims. "We want to make sure that the patents that are granted are truly novel," Turk said.

But, for Stallman, the problem is the implicit equation of "bad" software patents with invalid software patents, as if to say that software patents are OK provided they cover ideas that are new.

Peters disagreed, saying she cannot agree with any position that advocates doing nothing to help the patent office on the front end. The reason for this is that while the patent office is looking at a patent application, there are no patent rights per se at that time, and the claims can be defeated or narrowed.

Once the patent is issued, the law applies a presumption of validity to the patent that cannot be overcome except by clear and convincing evidence, she said. "It is much harder to get rid of a patent after it has been issued than it is before, when it is still in the form of an application," Peters said.

However, Stallman contended that "we must not let laborious half-measures distract us from what we really need. We must demand a real solution that addresses the whole problem of software patents: one that makes programming safe."